GOVERNMENT OF BANGLADESH Vs. SONTOSH KUMAR SHAHA

JUDGEMENT

(1.) These appeals and the leave petitions are disposed of by this judgment although they arise from different judgments of the High Court Division and the parties are also distinct. They raise common questions of law and therefore, they are grouped together for analogous disposal in order to avoid conflicting decisions. All of them involve the consideration of the following points:

(2.) For our convenience we would like to narrate short facts in Civil Appeal No.159 of 2010. The respondent Sontosh Kumar Shaha was a Senior Assistant Judge, Chuadanga and while he was serving as such two departmental proceedings under the provisions of the Government Servants (Discipline and Appeals) Rules, 1985 were initiated against him on the allegation of corruption. He was placed under suspension and departmental inquiries were held. The inquiry officers found no evidence of corruption against him in respect of one proceeding but in respect of the other, the report was somehow misplaced from the records maintained with the Ministry and the Supreme Court, the concerned Ministry reported that the allegations could not be established against him. Pursuant thereto, Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs by letter under memo dated 17th January, 2002, recommended to the Supreme Court for its approval to exonerate him from the charges and also to withdraw his suspension order. The Supreme Court did not approve the proposal and accordingly, the Ministry thereafter sent letters to drop the proceedings. This time the Supreme Court on perusal of the inquiry report directed the Ministry to issue second show cause notice upon him on 20th November, 2003. The respondent challenged the said order in Writ Petition No.7316 of 2003. The writ petition was summarily rejected on the ground that the recommendation of the Ministry was disapproved by the Full Court. Subsequently, it was detected that the proposal for suspension was neither placed before the G.A. Committee nor the Full Court in accordance with rule 3(d) of the High Court Division Rules. The respondent thereupon moved the High Court Division in another writ petition. The High Court Division upon hearing the parties made the rule absolute observing that the proposal for suspension and the initiation of the disciplinary proceedings were not placed before the G.A. Committee and also the Full Court and therefore, the direction given by the Supreme Court was without jurisdiction.

(3.) The Rules of 1985, was a piece of legislation which was promulgated by the President with the consultation of the Public Service Commission with the object to regulate the conditions of service, pay, allowances, pensions, discipline and conduct of Public Servants and statutory corporations. This Court in Masdar Hossain (52 DLR (AD) 82) declared that judicial service is not a service of the Republic within the meaning of article 152(1) of the constitution, and it is functionally and structurally distinct and separate service from the administrative service of the government and that the judicial service should not be placed at par on any account and should not be mixed up with the administrative services. This Court further declared that Bangladesh Judicial Service Recruitment Rules, 1981 are applicable to the officers of judicial service and directed the government to promotion, grant of leave, discipline, pay, allowances, pension and other terms and conditions of service in accordance with articles 116 and 116A for the judicial service and Magistrates exercising judicial works.